S v Kgafela

• Jurisdiction: South Africa
• Judge: Friedman JP
• Judgment Date: 06 June 2001
• Citation: 2001 (2) SACR 207 (B)
• Hearing Date: 17 May 2001
• Counsel: H R Molefe for the State. J Engelbrecht for the accused.
• Court: Bophuthatswana High Court

S v Kgafela
2001 (2) SACR 207 (B)

2001 (2) SACR p207

Citation	2001 (2) SACR 207 (B)
Court	Bophuthatswana Provincial Division
Judge	Friedman JP
Heard	May 17, 2001
Judgment	June 6, 2001
Counsel	H R Molefe for the State.; J Engelbrecht for the accused.

Flynote : Sleutelwoorde B

Sentence — Penalty clause — Minimum sentence — Imposition of in terms of ss 51, 52 and 53 of Criminal Law Amendment Act 105 of 1997 — Avoidance of minimum sentences — What constitutes 'substantial and compelling circumstances' — Semble: Approach of Supreme Court of Appeal discussed and suggestions made for textual interpretation of legislation. C

Headnote : Kopnota

The accused was convicted of the murder of her husband, a senior magistrate. In determining whether the accused should be sentenced to the minimum sentence of life imprisonment as prescribed by s 51 of the D Criminal Law Amendment Act 105 of 1997 on account of the murder having been premeditated, the Court was of the opinion that although it was bound by the decision of the Supreme Court of Appeal in S v Malgas 2001 (1) SACR 469 (SCA) it felt impelled to venture certain suggestions should the interpretation of what constituted 'substantial and compelling circumstances' be revisited by the Supreme Court of Appeal. E

The Court remarked that the terms 'substantial and compelling circumstances' had not been textually interpreted in the Malgas judgment but had been relegated to the effect of an instinctive reaction, and response, taking refuge in the notion of injustice, or unjust sentences, resulting in the imposition of a lesser sentence bearing in mind the well known triad of the criminal, the crime, and the interests of society. Although the Court referred to the F objectives of the minimum sentence, and the intention of the Legislature it failed to interpret what was meant by the phrase. The difficulty and dilemma in defining the said words could be appreciated as the Legislature had also not attempted to formulate them. This did not mean that a Court had to leave them uninterpreted and unformed, save as being the fulcrum of a sentence which rendered the prescribed sentence unjust, enabling the Court to impose a lesser sentence. G

The phrase appeared in an Act of the Legislature and had to be textually interpreted, with the text providing the content for the reasoning, in regard to the sentence prescribed. Section 51 contained a commanding voice, that obliged and forced courts to answer and respond to a gravitational pull in the passing of sentence. The function of the H courts was to interpret the said words for practical situations, by fathoming the intention of the Legislature in the text, and the filling in of the lacunae to discover situations where they are applicable. This involved the courts in an act of weaving undertaken by 'master weavers of rare powers'. In considering the said words the judicial officer had to apply the 'contextual rule', the rule that says that to find the true meaning of a word one must look to the context, and so I derive a proper sentence. This means to inquire into and to seek after the locus of the said words. A court also had to take cognizance of the fact that there are political, public and social demands in this country for greater public protection and security. It appeared in this regard as if the Legislature in passing the Act had adopted what has been teemed a social order approach founded on the efficiency of sanctions to preserve the social order, in order J

2001 (2) SACR p208

to combat the magnitude of crime. This approach relied on punishment as a A means of combating crime for the purpose of and maintaining social harmony and orderliness, namely seeing the crime and shaping the sentence. The said words are evocative of a method of combating crime by the courts imposing minimum sentences where applicable. The aspects of deterrence and retribution are heavily relied on for this purpose.

The courts therefore had to indulge in a skilful weaving of the strands B of the legislation and the interpretation of the said words to prescribe a solution from the level of a concept in legislation to one of practical implementation. Due cognizance also had to be accorded to respecting the diversity of factors involved in imposing sentence. A court also had to apply the mischief rule, to assist it in deciding on the true intention of the legislature. The court may take into account C 'the mischief' that the Act was designed to remedy.

The words 'substantial and compelling circumstances' ('sacc') in the Act had in their context a significance which called for a severe and grave rendition. These definitions bore a more profound relationship to the bench-mark which the Legislature had determined. The use of the touchstone 'unjust in that it would be disproportionate D to the crime, the criminal and the needs of society' did not deal adequately with the stringent provisions of the legislation and failed and overlooked to place great stress on the deterrent aspect of the punishment. The pivot and keystone of the approach of the Supreme Court of Appeal was to reverse the normal stages of sentence because of the bench-mark, and work retrogressively to the sentence, instead of E considering fully the proviso of the said 'sacc' and then having assessed them, determining whether the minimum sentence should be imposed. Therefore the specific content of the realm of the phrase could not be left open, and its content had to be filled by specific meanings. The terms 'extenuating circumstances', 'mitigating' and 'aggravating' factors were defined, and had meanings assigned to them by our courts. This must be so because their features require a F qualification and substantive application.

For these reasons the words 'substantial and compelling circumstances' should have been given some definition or formulation, rather than leaving it to judicial officers to determine the sentence by superimposing the theme and notion of 'unjust' on the fundamentals of the triad. This method did not displace or substitute the duty of the court to assign a meaning and interpretation to the text of the G Act. Without clarity and a description of 'substantial and compelling circumstances' there was no gauge, measure, or method of determining what constituted 'substantial and compelling circumstances'.

The decision in Malgas may cultivate and initiate a trend or process, by generating an emphasis on the proscribed sentence, and then engaging in the undertaking of an examination whether 'substantial and H compelling circumstances' existed, which justify the imposition of a lesser sentence than the sentence prescribed.

In the present case the Court held that despite the difficulties between the accused and deceased, the offence was serious in that it had been carefully planned and executed with the accused having hired an assassin to kill the deceased. In the circumstances the sentence of I life imprisonment was the appropriate sentence.

Case Information

Criminal trial on a charge of murder.

H R Molefe for the State.

J Engelbrecht for the accused. J

2001 (2) SACR p209

Cur adv vult. A

Postea (6 June).

Judgment

Friedman JP:

A. The Law

[1] The Criminal Law Amendment Act 105 of 1997, hereinafter referred to as 'the Act', provides for minimum sentences to be B imposed on persons convicted of certain offences. Judicial officers are vested with the discretion to impose less than the prescribed minimum if they are 'satisfied that substantial and compelling circumstances (hereinafter referred to as ''sacc'') exist which justify the imposition of a lesser sentence'. (The emphasis is mine.) C

[2] The Act stipulates inter alia for life imprisonment for persons convicted of murder, where: it was planned or premeditated.

[3] In the instant matter the accused pleaded guilty to, and was accordingly found guilty of murder. The Court, State, and defence were satisfied that the murder was 'planned and premeditated'.

[4] The salient provisions of the Act applicable are the following: D

'51. Minimum sentences for certain serious offences -

(1) Notwithstanding any other law but subject to ss (3) and (6), a High Court shall, if it has convicted a person of an offence referred to in Part I of Schedule 2, sentence the person to imprisonment for life.'

[5] The Act has received judicial pronouncements and E interpretations in a multiplicity of judgments since its promulgation and these have been collated by Marais JA in the Supreme Court of Appeal, in his judgment in the case of S v Malgas 2001 (1) SACR 469 (SCA) delivered on 19 March 2001.

These cases are S v Mofokeng and Another 1999 (1) SACR 502 (W); F S v Segole and Another 1999 (2) SACR 115 (W); S v Zitha and Others 1999 (2) SACR 404 (W); S v Jansen 1999 (2) SACR 368 (C); S v Swartz and Another 1999 (2) SACR 380 (C); S v Blaauw 1999 (2) SACR 295 (W); S v Shongwe 1999 (2) SACR 220 (O); S v Dithotze 1999 (2) SACR 314 (W); S v Homareda 1999 (2) SACR 319 (W); S v Van Wyk 2000 (1) SACR 45 (C); S v N 2000 (1) SACR 209 (W); G S v Boer en Andere 2000 (2) SACR 114 (NC); S v Kanjwayo; S v Mihlali 1999 (2) SACR 651 (O); S v Montgomery 2000 (2) SACR 318 (N). Unreported cases: S v Mthembu and Another, 365/98 WLD (Leveson J) 22.10.1998; S v Madondo, cc 22/99 NPD (Squires J) 30.3.1999; S v Ngubane, cc 31/99 NPD (Squires J) 30.3.1999; S v Cimani, cc 11/99 ECD (Jones J) 28.4.1999; H S v Oliphant, cc 27/99 SECLD (Erasmus J); S v Van Rooyen en Andere, cc 18/00 SECLD (Kroon J) 7.6.2000.

[6] Prior to the above decision in the Supreme Court of Appeal I had embarked on a detailed investigation and scrutiny of the above cases, in which I was assisted by Mr B J King of Justice College, who furnished me with the latest decisions on the point. I

[7] In view of the decision in the Malgas c...